Hey, Judge, Can I Talk to You

“Hey, Judge, Can I Talk To You?”

The Need for Judicial Independence

in Municipal Courts

Brian S. Holman

Presiding Judge

Lewisville Municipal Court

Presentation given November 8, 2007 at the

Texas Municipal League, TCCA Affiliate Meeting

Dallas, Texas

The topic of judicial independence has received much attention recently with high profile events like the Terry Schiavo case from Florida and the ongoing events in places like Pakistan[1], Venezuela[2] and Ecuador.[3] It is a topic that most often surfaces when partisanship politics and factional divisiveness over contentious issues is on the rise. It is however, nothing new. From the beginning of our existence as a nation, there have been attempts to pressure the judicial branch to rule in one way or another. The doctrine of separation of powers is the cornerstone of our federal and state constitutions and it explicitly acknowledges the need for a strong and independent judiciary so as to protect and promote the rule of law. My comments today will focus, in part, on some of the influences that affect the third branch of government and how those influences can, if not checked, have a pernicious effect of an independent judiciary. I will also apply those same principles to municipal courts and discuss how municipal governments can balance the competing principles of judicial independence, required by our Constitution, with the need and desire for judicial accountability, sought by municipal officials.

Both the Federal[4] and Texas[5] constitutions call for separate branches of government. The Legislative Branch – the elected senators and representatives – create the laws. The Executive Branch – Presidents, Governors, and other executive officers, including peace officers - are elected or appointed to enforce the laws and provide executive authority. And the Judicial branch – the Courts – resolves disputes between citizens or between citizens and the government. More often than not, it is the authority of the Court that stands between the individual and the power of the sovereign. The concept of “separation of powers” is part of the basic structure of both the U.S. and Texas Constitutions, but there is a difference between the doctrine of separation of powers and judicial independence. While most municipal and county governments do not strictly follow the structure of three separate but co-equal branches of government, the constitutional mandate of judicial independence nevertheless applies to municipal courts.

The requirement of an independent judiciary is clearly set forth in the preamble to the Texas Code of Judicial Conduct. It reads, “Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us.” While there is often the temptation for judges and municipal officials to feel a certain ownership of the municipal court, it is a state trial court nonetheless and, like all courts, is governed by the rule of law established by and for the people of the State of Texas.

“Judicial independence is the freedom we give judges to act as principled decision makers. The independence is intended to allow judges to consider the facts and the law of each case with an open mind and unbiased judgment. When truly independent, judges are not influenced by personal interests or relationships, the identity or status of the parties to a case, or external or economics pressures.”[6]

“A truly independent judiciary is one that issues decisions and makes judgments which

are respected and enforced by the legislative and executive branches; that receives an

adequate appropriation of funds from Congress [to function properly]; and that is not compromised by politically inspired attempts to undermine its impartiality…. Judicial independence includes the independence of an individual judge as well as that of the judiciary as a [separate] branch of government. Individual independence (otherwise known as decisional independence) is both substantive, in that it allows judges to perform the judicial function subject to no authority but the law, and personal, in the sense that it guarantees judges job tenure, [and provides] adequate compensation and security.”[7]

A judge's impartiality and his or her ability to interpret and apply the law fairly are integral to the proper administration of justice. Cannon 2 of the Texas Code of Judicial conduct states that a “judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It also states that a judge “shall not allow any relationship to influence judicial conduct or judgment” and it prohibits a judge from lending “the prestige of judicial office to advance the private interests of the judge or others” or from conveying or permitting others to convey “the impression that they are in a special position to influence the judge.” A judge’s impartiality is called into question whenever political pressure is brought to bear on a judge in order to ensure a particular outcome in a case. In the words of Supreme Court Justice Anthony M. Kennedy, "The law makes a promise--neutrality. If the promise gets broken, the law as we know it ceases to exist. All that's left is the dictate of a tyrant, or perhaps a mob."[8]

Public critique of judicial decisions has always been part of democratic society and is an essential component of self-government. We must be able to disagree with our government, including our judiciary, without fear of official oppression or retaliation. But no one is well-served when special interests seek to promote narrow partisan agendas through unwarranted, inappropriate criticism of judges. As stated by Tennessee Supreme Court Justice Adolpho A. Birch, Jr., "Judicial independence is the judge's right to do the right thing or, believing it to be the right thing, to do the wrong thing."[9]

Attacks on judicial independence seem to be cyclical in nature and usually correspond to increased periods of extreme or exaggerated political partisanship and intense public debate of socially divisive issues like flag burning, abortion rights, same-sex marriage and prayer in school. A recent example of this type of extreme partisanship occurred in the case of Terry Schiavo. You may recall that the Schiavo case involved the decision of a Florida judge to discontinue life support for a woman who was determined to be in a constant vegetative state. It was a contentious debate and resulted in state and federal lawmakers intervening through the legislative process to affect the outcome of the case. The numerous and extraordinarily intense attacks on the judges involved in the case led many in the legal community to decry the tactics of these prominent national leaders. In particular, Robert J. Grey Jr., past-president of the American Bar Association, issued a statement in March of 2005 during the Schiavo trial, which powerfully speaks to the concerns of all of those who believe in the preservation of the rule of law. He said:

Regardless of how one feels about the specific circumstances of this situation, the role of the judiciary in it is clear and straightforward. The federal and state judges who have been assigned this case have been charged with weighing the facts of the case and the remedies set forth in the law, responsibilities they have carried out valiantly and with great dignity and sensitivity to the anguish that all of the participants in this case have endured.

While it is appropriate for commentators, policymakers and the broader public to debate the societal challenges and dilemmas brought to light by Terri Schiavo's case, there is no need for personal attacks on the judges in this case. They are not killers as some have called them, nor are they activists bent on pushing an ideological agenda. They are simply dedicated public servants called on to serve as impartial arbiters in a very difficult case. Instead of maligning them for applying existing law to the case at hand, even though it may not reflect the current will of Congress, we should praise them for dispensing even-handed justice and upholding the independence of the judiciary even under the most difficult circumstances. These judges deserve our respect, not our scorn.[10]

There are five major principles of judicial independence and fair and impartial courts: Decisional Independence, Institutional Independence, Competent Judges, Adequate Resources and Accountability.

1. Decisional independence permits disinterested and impartial judges to make decisions based on the merits of the case and in accordance with the applicable law and governing constitutions unaffected by the pressures exerted from internal or external sources. It allows a judge to make rulings that may not be popular but that should be made nonetheless. Once again, as Justice Birch said, “…[it] is the judge's right to do the right thing or, believing it to be the right thing, to do the wrong thing."[11]

2. Institutional independence acknowledges the judiciary as a separate and co-equal branch of government charged with administering justice pursuant to the rule of law, and authorized to manage its own internal operations without unwarranted interference from the other branches of government. Recognition of the court’s authority and consistent enforcement of its orders by the other branches is critical to ensuring the continued viability of the court.[12]

3. Fair and impartial courts require competent judges who have been selected for their merit, who are sensitive to the diversity of their community, and who maintain their competency through continuing legal education and professional growth. In Texas, municipal judges must attend annual educational seminars or face possible removal from office by the State Commission on Judicial Conduct.

4. A competent and independent judiciary must have adequate resources to perform the duties and responsibilities of the office. This includes a budget that provides for adequate facilities and equipment, appropriate security to ensure the safety of all court personnel (judges, clerks, etc.) and just compensation for judges. Sufficient funding of court operations demonstrates the government’s commitment to judicial autonomy and the rule of law.

5. With judicial independence comes judicial accountability. The system must include a judicial code of ethics and an impartial disciplinary system that allows for a range of sanctions up to and including the removal of errant judges. The system must also provide a means for citizens to lodge complaints against judges for illegal or unethical conduct. In establishing judicial accountability however, the process should be designed to address ethical lapses or violations and should not be a surrogate for the appellate process or a means to remove a judge for unpopular decisions. Appropriate judicial accountability must also provide a transparent system that allows for public and media access to court proceedings and legal decisions.

Up to this point, the principles of which I have spoken relate generally to all courts, whether they are federal, state, county or municipal. In fact, one could argue that because municipal judges are, for the most part[13], appointed officers, they do not suffer from and are not affected by the same kinds of pressures as elected judges. Because they do not run for office, they are unaffected by rancorous partisan politics. Nor do they deal with the divisive and controversial issues of our day such as school prayer, capital punishment and abortion rights. Consequently, they are insolated from the public outcry in those very divisive cases. In fact, some local and state government officials give the impression that they look upon municipal courts as merely a convenient and reliable stream of revenue for the city rather than an essential part of local government. This unfortunate attitude, while nor pervasive, undermines the basic principles of fairness and justice that citizens expect and deserve.

One of the most common intrusions into the independence of the court is the imposition of quotas or the evaluation of court efficiency based on certain revenue goals. Section 720.002 of the Texas Transportation Code prohibits the use of citation or income quotas to "evaluate, promote, compensate or discipline [a] … municipal judge."[14] In fact, the creation or use of such a plan is grounds for removal of the city official or representative that promulgates or sponsors it.

Another common form of interference with judicial independence occurs when elected or appointed officials take a personal interest in ongoing, unadjudicated cases. A call from the mayor or a council member to the judge to inquire about a particular, ongoing case is inappropriate and could subject both the judge and the official to disciplinary penalties and sanctions for the ethical lapse. However, contact with the city attorney is permissible.

More subtle, but perhaps equally intrusive, interference occurs when city leaders attempt to influence the outcome of a case by dealing directly with court support personnel rather than the judge. This can happen when the official inquires into the status of a case in an informal setting such as the grocery store, a church activity or a local restaurant. Such inquiries, often made with good intentions, can give the impression of improper political pressure on the court and must be avoided if judicial independence is to be preserved. Unofficial contact with court personnel, while not per se improper, gives the appearance of impropriety and thus is equally prohibited.